UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4716

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ORVILLE RICHARDS, a/k/a James Ray,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (5:06-cr-00192-F)

Submitted: May 30, 2008 Decided: July 8, 2008

Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, North Carolina, for Appellant. Anne

Margaret Hayes, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
-2-

PER CURIAM:

In accordance with a written plea agreement, Orville

Richards pled guilty to conspiracy to make false statements to gun

dealers in connection with the acquisition of firearms, in

violation of 18 U.S.C. § 371 (2000). He was sentenced to sixty

months in prison. Richards now appeals. His attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

raising three issues but stating that there do not appear to be any

meritorious issues for appeal. Richards has filed a pro se

supplemental brief raising additional issues. Finding no

reversible error, we affirm. 

I

Richards contends that his guilty plea was not

voluntarily and knowingly entered. Our review of the transcript of

his arraignment discloses that the proceeding was properly

conducted under Fed. R. Crim. P. 11. This “raise[s] a strong

presumption that the plea is final and binding.” See United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Further, a

defendant’s declarations during the plea colloquy “carry a strong

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74

(1977). 

Richards represented at his Rule 11 hearing that he was

entering his plea freely and voluntarily with a full understanding
-3-

of the charges against him, the penalties he faced, the rights he

waived by pleading guilty, and the applicability of the sentencing

guidelines and the statutory factors set forth at 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2007). When he entered his plea,

Richards was twenty-seven and had completed both high school and

technical school. He informed the court that a summary of the plea

agreement that was read into the record was correct. Richards

admitted that he had committed the offense and was guilty as

charged. Finally, Richards expressed his satisfaction with his

attorney’s services. Under these circumstances, we conclude that

the plea was both knowing and voluntary. 

II

Richards asserts that the district court failed to

properly inquire about his waiver of his appellate rights. We note

first that this claim is moot because the Government did not seek

enforcement of the waiver, and all issues raised in the appellate

briefs are addressed in this opinion. In any event, our review of

the transcript of the Rule 11 proceeding discloses that the

district court sufficiently explored Richards’ understanding of the

waiver. 
-4-

III

In his pro se brief, Richards states that the Government

stipulated in the plea agreement that he was entitled to a threelevel downward adjustment based on his acceptance of

responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1

(2005). At sentencing, however, the Government did not argue in

favor of this adjustment, which Richards did not receive. Richards

contends that the Government thus breached the agreement.

Although the Government did stipulate that Richards was

entitled to the adjustment, the plea agreement also stated that the

stipulation was “not binding on the Court in its application of the

advisory Guideline range,” and noted “that if Defendant’s conduct

prior to sentencing changes the circumstances with respect to any

such factor, the United States is no longer bound to its position

as to that factor.” Richards’ probation officer reported that

Richards had not accepted responsibility, and the district court

found that he was not entitled to the adjustment. The Government

therefore did not breach the plea agreement. 

IV

Although Richards contends that the district court

exhibited bias against him at sentencing, our review of the

sentencing transcript shows no bias. The district judge made no

comment that would suggest “an apparent disposition toward a party
-5-

that is wrongful or inappropriate.” See United States v. Gordon,

61 F.3d 263, 267 (4th Cir. 1995). The fact that the court ruled

against Richards with respect to several sentencing matters does

not demonstrate bias. See Liteky v. United States, 510 U.S. 540,

555 (1994) (stating judicial rulings rarely “evidence the degree of

favoritism or antagonism required [to make fair judgment

impossible] when no extrajudicial source is involved”).

V

Counsel states that Richards believes the prosecutor

withheld taped recordings of telephone conversations, in violation

of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the

Government has a responsibility to disclose evidence favorable to

the accused when the evidence is material to guilt or punishment.

Id. at 87; Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003).

To obtain relief under Brady, a defendant must show that: (1) the

evidence is favorable to the defendant; (2) the Government

suppressed the evidence; and (3) the documents subject to

disclosure exist and were not disclosed.

Richards’ claim lacks merit. First, Richards did not

substantiate that the recordings exist. Even if they do exist and

are exculpatory, however, the prosecution’s failure to disclose

them is not reversible error. The failure to disclose Brady

evidence prior to a guilty plea does not establish a constitutional
-6-

violation because impeachment information is a safeguard for a fair

trial, not a plea. United States v. Ruiz, 536 U.S. 622, 633

(2002). Further, under Tollett v. Henderson, 411 U.S. 258, 267

(1973), Richards’ valid guilty plea waives this claimed

nonjurisdictional defect.

VI

Richards contends that trial counsel was ineffective

because he did not properly review all the evidence before advising

Richards to plead guilty and because counsel coerced the guilty

plea. We note that the latter claim is at odds with Richards’

solemn statements at arraignment that his guilty plea was freely

and voluntarily entered. In any event, to allow for adequate

development of the record, a defendant must ordinarily bring a

claim of ineffective assistance in a 28 U.S.C. § 2255 (2000)

motion, unless ineffectiveness conclusively appears on the face of

the record. United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir.

1997). Our review of the record does not disclose ineffectiveness.

VII

We have examined the entire record in this case in

accordance with the requirements of Anders, and we find no

meritorious issues for appeal. Accordingly, we affirm. This court
-7-

requires counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.

If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may move

in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy of the motion was served on the

client. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED